Colouring Outside the Lines: Crayola’s Innovative Approach to Trade Mark Protection

Credit: Sharon Givoni

Colouring Outside the Lines: Crayola’s Innovative Approach to Trade Mark Protection

At DesignWise, We are all about creativity and the law—helping you protect your ideas and creations legally. Through our affiliated law firm, Sharon Givoni Consulting, you can access expert guidance to safeguard your work and ensure your creative assets are protected.

This blog is about one of the more creative corners of trade mark law—registering scents.

Yes, you read that right. Trade marks aren’t just for logos, taglines, or quirky brand names.

These days, trademarks can encompass colours, sounds, packaging, and even scents. It’s a world where creativity meets commerce, and sensory experiences can become a brand’s calling card.

If we were to ask Crayola’s CEO, Pete Ruggiero, no doubt he would agree.

In 2024, Crayola made headlines for securing a trade mark in the U.S. for its iconic crayon scent—a victory that celebrates the power of nostalgia and sensory branding. As Ruggiero put it at the time:

“This isn’t just about crayons. It’s about childhood memories, creativity, and the simple joys that define us.

To view Crayola’s website, click here: https://www.crayola.com/

The Smell of Success: Crayola’s Crayon Scent

Crayola’s scent—described as “slightly earthy soap with pungent, leather-like clay undertones”—isn’t just a smell; it’s a time machine.

For millions, it evokes childhood afternoons spent drawing and doodling, forever tied to creativity and innocence.

But turning this iconic scent into a trade mark was no easy feat.

The U.S. Patent and Trademark Office (USPTO) rejected the application four times, arguing the scent was merely a functional byproduct of crayon ingredients. Crayola fought back, proving the scent resulted from a unique manufacturing step that set it apart from other crayons.

Their perseverance paid off. By demonstrating that the scent had acquired distinctiveness through its long-standing association with the Crayola brand, the company secured its sensory trade mark—a move that solidifies its place in both commerce and memory.

Scent Trade Marks in Australia

While Crayola celebrated its victory in the U.S., scent trade marks remain a rare phenomenon in Australia.

Of the nearly 900,000 registered trade marks currently live, only two are scents:

• Eucalyptus Radiata for golf tees: esconcierge.co.
• Cinnamon (principally cinnamaldehyde) for non-wood-based furniture: norvanivel.com.

These Australian businesses have utilised scent trade marks as part of their branding strategy to create distinctive product offerings.

What Makes a Scent Trade Mark Registrable?

If you’re dreaming of trade mark protection for your signature scent, be prepared for a challenging journey. Here’s what IP Australia requires:

1. Graphical Representation – You must describe your scent in words that are precise, clear, and easily understood. Forget poetic descriptions like “the
   smell of a sunny meadow.” Think more along the lines of “the smell of vanilla” or “a strong cinnamon scent.”
2. Distinctiveness – The scent must distinguish your goods or services. For example, the smell of coffee for coffee beans won’t work (too functional), but the smell of coffee for air fresheners might (if it’s unique enough).
3. It must not be functional – The scent must not serve a practical purpose. For instance, masking a bad smell is considered functional and not registrable. The scent needs to stand apart, acting solely as a brand identifier.

Challenges and Examples

Registering a scent trade mark is no walk in the park as there are a few hurdles:

• Subjectivity: Scents are sensory and open to interpretation, making them tricky to define in universally accepted terms.
• Distinctiveness Threshold: Proving your scent is unique and not just a natural product characteristic is tough.

While Australian law is conservative on this front, other countries have successfully embraced the concept. Consider these examples:

• Play-Doh (U.S.): A “sweet, slightly musky, vanilla fragrance with cherry overtones.”
• Verizon (U.S.): A flowery musk scent in its retail stores.
• Flip Flop Shops (U.S.): A coconut aroma that screams beach vibes.

What Does This Mean for Australian Creative Businesses?

For Australian creatives, scent trade marks remain a possibility, but they require patience, precision, and perseverance. Here’s what you need to know:

1. Engage experienced trade mark lawyers, like us, to draft a strong application and navigate the complexities.
2. Gather evidence to show your scent’s distinctiveness and association with your brand.
3. Don’t forget—IP Australia doesn’t accept scratch-and-sniff samples.

Why use Sharon Givoni Consulting?

We understand the unique challenges faced by creative businesses, click here for more information. Our passion lies in helping you protect the elements that make your brand unforgettable. Whether it’s a scent, sound, or colour, we’re here to guide you every step of the way.

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.